Canada’s Marbury v. Madison? Not quite.

As reported in the Globe and Mail, Justice Colin Westman has joined a chorus of Canadian judges refusing to apply the law, as a protest against the federal government’s criminal sentencing legislation. Whatever the merits of their political views on the subject, the rebellious judges threaten a constitutional showdown which they will not, and should not win. As lawyers and law students, it is important for us to understand why judicial rebellion is not judicial independence. Judicial rebellion harms judicial independence. To see this, one has to understand the source of judicial power.

The zone of judicial independence holds back executive power through the judicial province and duty “to say what the law is.” Those were the words of Chief Justice John Marshall in the U.S. Supreme Court’s 1803 decision in Marbury v. Madison. Arguably the most important judicial decision in history, it meant governments could be checked by a suit brought by the lowly citizen, at a time when monarchs, dictators and parliaments were doing whatever they liked.

Despite his belief in an inherent judicial power, Judge Westman commands no army, instructs no police, and disburses no funds. In the case of sentencing, the judge does not incarcerate or enforce a fine. Rather, those are the administrative functions of government based on the judicial opinion (a judgment) of what the prison term or fine should be, and a statutory law saying that Corrections Canada will abide by that judgment. This is the very rule of law that protects citizens against arbitrary detention and cruel and unusual punishment.

Once the judge says what the law is, and then expects the administration to act completely contrary to what the law is, the cause-and-effect between judicial pronouncement and administrative action is strained. The government is left to contemplate the appropriate course of action. It might respond, “We’ll do what you say is the law, not what you say we should do.” Or it might say, “We’ll do what you say we should do, not what you say is the law.” Or it might say, “We’ll do what we’ll do, whatever you say.” The court loses its authority to say what the law is, and the leash on executive power is snapped. Say farewell to judicial independence and the power to curb against unconstitutional penal sanctions.

The judge’s belief that his personal conscience or “theological perspective,” in the case of Justice Westman, can trump the law of the land is even more problematic, because it is not based on legal reasoning at all. You can imagine a judge in an access to abortion case saying the law of Canada allows freedom of access but his theology trumps and requires him to defer granting an access injunction for 9 months. The reasoning is the same as that employed in making a fine payable over such a length of time that it imposes no hardship to the person convicted of the crime, or setting it so low that the amount offends the purpose of a victim-of-crime surcharge.

The doctrine of inherent jurisdiction in Common Law originates with the way the courts were formed in England in empowering a high court to hear any matter that comes before it. Its application in criminal law in Canada is limited largely to the control of the court’s own process and to the interpretations given to principles employed in the Criminal Code. If judges were permitted to refuse to apply penalties prescribed by statute, the same “inherent” jurisdiction could be used to apply penalties that are harsher than those prescribed by statute, and the accused’s resort would be to s. 11 of the Charter. If one member of the bench abuses “inherent jurisdiction” to oppose a law because of a personal opinion that it is too harsh, another judge might also abuse that power to oppose a prescribed penalty that appears insufficient for general and specific deterrence.